Sotomayor and the Ricci Quagmire: A Title VII Catch-22

June 15, 2009

Few doubt Judge Sotomayor’s U.S. Supreme Court Senate confirmation hearings will key in on the controversial panel decision she authored in Ricci v. DeStefano, which affirmed summary judgment against white and white-Hispanic firefighters’ Title VII reverse race discrimination claims.

In Ricci, the plaintiffs scored high on promotional tests that New Haven’s Civil Service Board subsequently threw out because of the test’s alleged, resulting statistical disparate racial impact. The plaintiffs argued, among other things, that rejecting the test results violated 42 U.S.C. § 2000e-2(l). That statute makes it unlawful to adjust, use different cutoff scores for, or alter the results of employment tests based on a protected status.

The City argued, and the plaintiff employees conceded, that the adverse impact ratios for African-American and Hispanic test-takers were too low to pass general muster under the EEOC’s guidelines and Second Circuit precedent.

Recognizing the difficult position faced by the City, the District Court held that the Civil Service Board’s decision to throw out the test results and start over was a race-neutral action given that all tests were discarded and no one was promoted. In other words, there was no “race-norming” because the test results were tossed, not altered. On appeal, Judge Sotomayor and two other Second Circuit Court of Appeals panel members tersely upheld the ruling, finding that the Board was “in the unfortunate position of having no good alternatives.” The Second Circuit panel further concluded that by refusing to validate the exams, the Board “was simply trying to fulfill its obligations under Title VII.”

Opponents argue that at least one good alternative existed – the Board could have tried to validate the exams, which would have provided an affirmative defense to potential disparate impact claims. If validation failed, then discarding the results would be justified. However, Judge Sotomayor made no comment on the issue. Judge Sotomayor also declined to analyze whether throwing out the results was an adjustment or alteration that implicated 42 U.S.C. § 2000e-2(l).

The Supreme Court has already heard oral arguments on the case and is expected to rule in late June. Regardless of the ultimate outcome, the Senate Judiciary Committee is likely to press Judge Sotomayor as to why she passed on the chance to analyze such novel issues of law. Judge Sotomayor will also likely be questioned hard about whether the panel’s three-paragraph “summary order” was sufficiently judicious and whether the District Court’s underlying opinion was, in turn, as “thorough, thoughtful, and well-reasoned” as she asserted in the ruling. Some find the Second Circuit panel’s decision and cursory treatment of the plaintiff’s claims to be incendiary, placing race above qualifications. Others find it to a be reflection of the Catch-22 that employers often face when internal statistical analyses show that a proposed action or result may have been impacted by unlawful bias.

For assistance in analyzing disparate impact data in connection with hiring, promotion, reduction in force and other employment decisions and assessing the pros and cons of alternative action, please contact the author or any member of McGuireWoods’ Labor & Employment or Employee Benefits teams.